After a long, bitter battle with Keller school officials in Tarrant County over the needs of her autistic, suicidal son, Sheryl Kaminsky hoped that a due process hearing would finally wake them up.

Turns out, she couldn’t even wake up the judge.

Larry Craddock, a special education hearing judge in a case brought by Kaminsky and her partner Donna Harvey on behalf of their son Ryan, slept during critical testimony over several days of proceedings in Keller. The judge repeatedly dozed, they said, despite both of them coughing excessively and dropping water bottles and four-inch-thick evidence binders.

“It was disturbing. We didn’t know what to do,” said advocate Mara LaViola, who has worked closely with the couple and with their attorney, Myrna Silver of Dallas. “These parents had spent so much money to get there and had fought the system, and now he was sleeping during their chance to be heard.”

Though initially Craddock denied having nodded off, a cell phone camera left little doubt. He eventually resigned over the resulting furor, but it was not enough for Kaminsky and Harvey to get a ruling in their favor. Favorable rulings against school districts rarely happen anyway with judges that are hired by the Texas Education Agency to preside over due process hearings, they said.

Adding insult to injury for the Keller couple was the fact that there had been several other complaints about Craddock sleeping on the bench – and yet the TEA continued to allow him to preside in hearings.

Harvey and LaViola said that Kaminsky had a breakdown over the judge’s persistent inattentiveness and at one point had to be taken to an emergency room with dangerously high blood pressure.

“It was,” said Harvey, “emotionally devastating.”

Lives at stake

As bad as the experience was for Harvey and Kaminsky, imagine being a defendant in a capital murder trial and the judge, jury members – or your own defense attorney – use the courtroom as a place to catch 40 winks.

It’s happened.

In 1999, former death row inmate Calvin Jerold Burdine was granted a new trial on the basis that he had been denied his Sixth Amendment right to counsel because of the persistent slumber of his lawyer during testimony. Burdine’s lack of competent representation led in part to the creation in 2000 of the Fair Defense Act, which led to the formation of the Indigent Defense Task Force. The Task Force recently became the Texas Indigent Defense Commission.

Burdine’s lawyer, Joe Frank Cannon of Houston, also was found to have slept during the capital murder trial of another of his clients, Carl Johnson. Johnson was not as lucky as Burdine. He was executed in 1996.

According to Kathryn Kase, executive director of Texas Defender Service, 10 clients of the now-deceased Cannon ended up on death row.

Another Houston attorney, John Benn, slept throughout virtually the entire trial of his client, George McFarland, according to Kase and the Houston Chronicle. Nevertheless, the Texas Court of Criminal Appeals denied McFarland a new trial and upheld his death sentence because another defense attorney remained awake. McFarland currently is on death row.

Houston Chronicle court reporter John Makeig, now deceased, stated in a video about McFarland’s trial that he confronted the judge about Benn’s repeated slumber, telling him that it “shouldn’t be going on” and that “everybody in the world deserves better representation than that.”

According to Makeig, the judge replied that the Constitution guarantees everyone an attorney, “but there ain’t nothing in the Constitution about the attorney having to be awake.”

Wake-up call

Brian Stull, senior staff attorney for the American Civil Liberties Union’s Capital Defense Project, said that a sleeping judge is “completely unacceptable.”

He said that in Burdine’s case, the 5th Circuit Court of Appeals determined that “unconscious counsel is the same as no counsel at all.” Stull said he believes the same rule of thumb applies to judges.

“The judge’s role is like the umpire’s role in a ball game – he calls the balls and strikes,” Stull said. “A trial judge is even more crucial because the evidence is coming in before the trial judge, and they have to be constantly making decisions.”

But Robert Sherwin, an adjunct professor with Texas Tech University School of Law in Lubbock, doesn’t completely agree. He said that there are safeguards to minimize any damage done in the rare cases when a judge dozes on the bench.

“You could say a judge is like a referee in a football game, but even that might be overstating it,” he said.

Sherwin said that sleeping judges may not actually get anything wrong and, if they do realize later that they have erred, they can correct it. Also, he said, the Court of Appeals can reverse a verdict that resulted from an incorrect ruling.

They snooze, we lose

In June of 2009, a state appellate court in Ohio tossed a murder conviction because at least two jurors slept and the judge did nothing to stop it. The decision granting Arif Majid a new trial stated that sleeping “is a form of juror misconduct.”

Further, the judge – who had been informed five times during the trial that a juror had been dozing – said: “I saw it. So what. Let him sleep. You guys picked the jury. I didn’t.”

Stull, of the ACLU, said that a sleeping juror is similar in many ways to a sleeping judge.

“The judge calls the balls and the strikes on the legal issues, but the jurors determine the facts,” he said. “They are there for very similar reasons; it’s just a division of responsibilities. The defendant has an absolute right to a trial by a jury. If you’re missing one of them at any time, that right is being violated.”

RIGHTS AND WRONGS

Harvey said that she and Kaminsky asked Craddock to recuse himself because of his repeated dozing, but “at first he refused because he said that the rules state that any requests for recusals have to be made 10 days prior to the hearing. We said, ‘We had no way of knowing that you were going to sleep during the hearing.’

“It’s like there’s no accountability,” Harvey said, “for those who are put in those positions of power.”